IN THE HIGH COURT OF JUDICATURE AT PATNA

First Appeal No.194 of 2010

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Shyam Sunder Singh & Anr.

.... .... Appellant/s

Versus

Uday Devi & Ors.

.... .... Respondent/s

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Appearance :

For the Appellant/s : Mr. Ashok Kumar

For the Respondent/s : Mr.

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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR

SAHOO

ORAL ORDER

22

08-07-2014 1.

Heard the learned counsel, Mr. Bhupendra Narain

Sinha, for the appellant and the learned counsel, Ms. Malika

Majumdar, on behalf of the respondent on the interlocutory

applicationNo.5608 of 2013.

2.

This interlocutory application has been filed by the

appellant praying for condoning the delay of 12 years 9 months in

filing the Second Appeal.

3.

It appears that this First Appeal has been filed on

05.10.2010 against the Judgment and Final Decree dated

10.05.1999 by the plaintiff appellant.

Patna High Court FA No.194 of 2010 (22) dt.08-07-2014

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4.

The learned counsel for the appellant submitted that

earlier against the said Order dated 10.05.1999, civil revision

No.1385 of 1999 was filed by the plaintiff appellant which was

held not maintainable on 16.12.1999 and it was dismissed but in

the said order while dismissing the revision application as not

maintainable, it was observed that the objection filed by the

plaintiff has been rejected and pleader commissioner’s report has

been confirmed, which after drawing decree is applicable and

because of this observation, the appellant waited for the

preparation of the final decree which was prepared and signed on

30.07.2010. According to the learned counsel, therefore, there is

no laches on the part of the appellant.

5.

Further the learned counsel relying on the decision of

the Hon’ble Supreme Court reported in 2002 (3) PLJR 247 SC,

AIR 1987 SC 1353 submitted that while considering the limitation

application, liberal approach be given by the Court and the

application should not be dismissed on technical grounds.

6.

On the other hand, the learned counsel for the

respondent submitted that the civil revision has been held to be not

maintainable

because

the

order

whereby

the

pleaders

commissioner’s reports was confirmed after rejecting the objection

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filed by the appellant was appealable. The appellant thereafter

never tried to file appeal challenging the said order / judgment

whereby the pleader commissioner’s report was confirmed and it

was directed that the pleader commissioner report shall form part

of the decree. According to the learned counsel the limitation will

not stop running and the explanation submitted by the learned

counsel for the appellant that because of wrong advise, the appeal

has been filed after such a long period is not tenable.

7.

It is admitted fact that the civil revision application filed

by the appellant was dismissed as not maintainable as the order

itself was held tobe appealable. While dismissing the said civil

revision application, same observations have been made but that

observations will not mean that the appeal will be maintainable

only if the final decree is engrossed in stamp paper.

8.

In the case of Udayan Chinubhai Vs. R. C. Bali, AIR

1977 SC 2319, the Hon’ble Supreme Court has held that ‘under

Section 12 (2) read with the Explanation a person cannot get

exclusion of the period that elapsed between pronouncement

of the judgment and the signing of the decree if he made the

application for a copy only after preparation of the decree.’ In

the present case at our hand admittedly for the purpose of filing

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the First Appeal, the applicat